Construction Union Worker Entry Permit Denied

September, 2014

By Clayton Payne

A recent decision of the Fair Work Commission (FWC) has shown that it is not all plain sailing for union officials seeking the right to enter workplaces.

The decision by FWC Officer Chris Enright to refuse an entry permit to a CFMEU official has been affirmed on appeal by the full bench of the FWC.

Crucially, the official’s previous history was taken into account in reaching this decision.

A historical pattern

In June 2009, in the case of Lovewell v Pearson, it was found that the official unlawfully blocked the pouring of concrete on a site in Brisbane’s CBD. The court found his actions unreasonable since it caused a concrete disposal fee in excess of $12,000 to be suffered by the contractor. Penalties totalling $4,500 were brought on the official, while penalties received by the union amounted to$16,000.

The following year in February 2010, (FWBC v Myles) the official and two others, engaged in activity which Mr Enright described as “intentionally hindering, obstructing and otherwise acting in an improper manner” at a Laing O’Rourke site. The improper manner involved swearing and insulting a site foreman; soliciting business; and encouraging workers to down their tools and leave the site. For this matter, the official was fined $4,950 and the union, $26,400.

In February 2011, the official (accompanied by a second official) entered a worksite in promotion of the union’s “sham contracting” campaign and persuaded 65 workers to walk off the job in support. As a result, the union was fined roughly $50,000 (approximately 23% of the maximum fines available).

Shortly afterwards, in May 2011, the official was fined again after the Lend Lease v CFMEU dispute. This fine was the result of his involvement in a number of job walk-offs, including the Brisbane Law Courts Site and the Gold Coast University Hospital. Individual fines imposed on each of the seven officials involved totalled $40,000; and the unions (including the Queensland branch of the CFMEU and the CEPU) were fined $550,000.

Mr. Enright found that the official’s conduct overall demonstrated a “lack of regard for the provisions of industrial legislation” in particular, with regard to “… the contraventions of the statutory right of entry set out in the (Fair Work Act) FWA [or the old Workplace Relations Act]”. The reason for refusal to grant the official a permit, according to Mr. Enright, was that he did not satisfy the requirement of being a “fit and proper person”. Mr Enright commented that his assessment was based on the fact that “given the rights, conditions, limitations and responsibilities attaching to the exercise of such permits (as set out in part 3 and 4 of the FWA)”, the official’s conduct did not satisfy the test.

The appeal

Mr Enright’s ruling was appealed by the unions on the basis that the time frame between each contravention had not been taken into consideration. However, the full bench rejected the appeal, throwing out the challenge on the basis that the assessment made under s 513 of the FWA took into account factors other than the entry breaches; and, the full bench agreed that the test of a “fit and proper person” had not been met.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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